Weekly Newsletter 041/2018

Weekly Newsletter 041/2018



Kenya Law

Weekly Newsletter


The prospect of an inconsistency between two judgments of the Court of Appeal warrants an appeal to the Supreme Court as a matter of general public importance.
Kenfreight (EA) Limited v Benson K Nguti [2018] eKLR
Civil Application No. 18 Of 2016
Supreme Court of Kenya
D K Maraga, CJ & P; J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ
September 24, 2018.
Reported by Kakai Toili
Download the Decision

Appeals – appeals from the Court of Appeal to the Supreme Court–certification of appeals-criteria to certify appeals–general public importance-where there was a prospect of inconsistency between two judgments of the Court of Appeal-whether the prospect of inconsistency between two judgments of the Court of Appeal warranted an appeal to the Supreme Court as a matter of general public importance.

Brief Facts
The Respondent filed a suit in the Trial Court claiming unfair termination of employment. The Respondent’s claim was upheld by the 1st Appellate Court. The 1st Appellate Court held that the said termination of employment was unfair even though the Applicant complied with section 35 of the Employment Act, 2007 by paying one month’s salary in lieu of notice and that the Respondent was entitled to 12 months’ salary. The Applicant sought leave and certification to lodge an appeal against the 1st Appellate’s Court decision to the Court but the Application was declined on the ground that no matter of general public importance warranting further appeal had been shown. Aggrieved by the decision, the Applicant filed the instant Application.

Issue:
Whether the prospect of inconsistency between two judgments of the Court of Appeal warranted an appeal to the Supreme Court as a matter of general public importance.

Held:
The particulars of inconsistency between the Appellate Court’s decisions in CMC Aviation Ltd. v. Mohammed Noor, Nairobi Civil Appeal No. 199 of 2013 and in the Applicants case at the 1st Appellate Court would only be fully evinced upon a hearing of the intended appeal. The prospect of inconsistent determinations in relation to the law of employment would affect the process of application of the law and would have a bearing on the interests of members of the public. The instant matter to fell within the terms of article 163(5) of the Constitution. The prospect of inconsistency in two different judgments justified a hearing.
Application allowed
Orders
  • Applicant to file an appeal in the Court within 14 days of the date of the Judgment.
  • No order as to costs.
Kenya Law
Case Updates Issue 043/2018
Case Summaries

JURISDICTION A Resident Magistrate’s Court sitting as a court of first instance in an election dispute cannot issue a corrective order with regard to its judgment after expiry of the statutory six months for it to determine election disputes.

John Nduati v Independent Electoral & Boundaries Commission & 4 others [2018] eKLR
Election Appeal No. 14 of 2018
High Court at Nairobi
F Tuiyott, J
October 3, 2018.
Reported by Kakai Toili

Download the Decision

Jurisdiction-jurisdiction of the Resident Magistrate’s Courts-jurisdiction in election disputes-jurisdiction to issue corrective orders-where the statutory six months for determination of election disputes had lapsed-whether a Resident Magistrates Court sitting as a court of first instance in an election dispute could issue a corrective order with regard to its judgment after expiry of the statutory six months for it to determine election disputes-Constitution of Kenya, article 87(1);Elections Act, section 75(2); Elections (Parliamentary and County Elections) Petition Rules, 2017, rule 34 (10)
Civil Practice and Procedure-orders-corrective orders-corrective orders pursuant to the slip rule-whether a corrective order pursuant to the slip rule was equivalent to a court’s determination on a particular issue-what was the remedy available to a party seeking correction of an error in a judgment of an election dispute after expiration of the statutory time to determine such disputes
Words and Phrases-determination-definition of determination-the act of deciding something officially; especially, the final decision by a court or administrative agency -Black’s Law Dictionary, 10th Edition

Brief facts:
The Appellant filed a Petition challenging the nomination of four persons as Members of the Nairobi County Assembly. The Petition was filed within the time prescribed by law and determined within 6 months as prescribed by law. The Appellant thought some aspects of the decision to be problematic and erroneous, he thereafter filed an application seeking an order that the error on the face of the Judgment be corrected and that the Certificate be corrected to reflect the names of the Interested Parties in the body of the Order and Certificate. The Application was heard a day after the deadline prescribed by law to determine election disputes.
 The Respondent raised a Preliminary Objection on the ground that the Court had no jurisdiction to hear the Application. The Election Court held that once it pronounced the Judgment it became ex-officio, any appeal, correction or clarification sought should be before the High Court. Aggrieved by that decision the Appellant filed the instant Appeal.

Issues:

  1. Whether a Resident Magistrates Court sitting as a court of first instance in an election dispute could issue a corrective order with regard to its judgment after expiry of the statutory six months for it to determine election disputes.
  2. Whether a corrective order pursuant to the slip rule was equivalent to a court’s determination on a particular issue.
  3. What was the remedy available to a party seeking correction of an error in a judgment of an election dispute after expiration of the statutory time to determine such disputes?Read More..

Relevant Provisions of the Law
Elections Act
Section 75
(2)  A question under subsection (1) shall be heard and determined within six months of the date of lodging the Petition.

Elections (Parliamentary and County Elections) Petition Rules, 2017
Rule 34 (10)
The High Court to which the Appeal is preferred may confirm, vary or reverse in whole or in part, the decision of the Court from which the Appeal is preferred and shall have the same powers and perform the same duties as are conferred and imposed on the Court exercising original Jurisdiction.”  (my emphasis)

Held :

  1. Every court had the power to recall its decision to correct an error or slip so as to give effect to the manifested intention of its decision. The power to apply the slip rule inhered in every court and to refuse to acknowledge it was to refuse to acknowledge that just as other human beings, judicial officers from time to time committed clerical or arithmetical mistakes, accidental slips or omissions.
  2. Kenyans by dint of article 87 (1) of the Constitution expressed a desire that election disputes be resolved in a timely fashion. That desire was informed by the sad legacy of election disputes which dragged on almost endlessly that it was not uncommon that some disputes were determined after the expiry of the term of office which was the subject of the dispute. The prescription of a timeframe for the hearing and determination of election disputes was therefore deliberate.
  3. An argument could be made, but which was not made, that when a Court made an order under the slip rule then it was not making a determination.  It could then be pressed that since what was time bound to six months was the Determination of the Petition, an Order pursuant to the slip rule made after that period did not infringe on the rule.
  4.  In so far as the objective of the slip rule was to merely give effect to the manifest intention of a decision and did not change the substance of the decision a corrective order made under the slip rule could not be a determination. Whether or not such a corrective order could be made depended on whether or not the court seized of the matter was the court of last instance in the dispute.
  5. The Election Court was sitting as the Court of first instance and its decision was appealable as a matter of right. For purposes of giving due regard to the wish of Kenyans that election disputes be determined expeditiously and which wish had been unequivocally expressed in the Constitution and statute, an Election Court sitting as a court of first instance had to down its tools and could not make any orders in respect to the determination of the dispute after the expiry of the 6 months period. If an Election Court had rendered its determination, then any application in respect to the Court’s decision that came post the date of the determination had to be heard and determined prior to the expiry of the 6 months.
  6. The determination of an election dispute could come so close to the end of the timeline that it was not humanly possible to seek any meaningful intervention from the Election Court post the determination. An error in a decision, be it a clerical, arithmetical error, accidental slip or omission, could be corrected through an appeal. An appeal from a Resident Magistrate sitting as an Election Court was to the High Court. The High Court  in its appellate jurisdiction had  power to correct an accidental slip or omission committed by the Election Court and if there was doubt about such power then rule 34 (10) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 provided clarity.
  7. The Appellant placed his bet on the wrong horse and it was regrettable that an Application that had been filed timeously was not heard and determined prior to the end of the 6 months period. Given the uniqueness of an election dispute and the short period that remained after the Courts judgment, the more prudent action for the Appellant would have been to prefer an appeal in respect to the error that aggrieved him.

Appeal dismissed, each party to bear its own costs.

JUDICIAL REVIEW Court declines to grant orders to stop criminal proceedings relating to the Solai Dam tragedy.

Johnson Kamau Njuguna & another v Director of Public Prosecutions
Judicial Review No 9 of 2018
High Court at Naivasha
R Mwongo, J
September 3, 2018
Reported by Beryl A Ikamari

Download the Decision

Judicial Review-certiorari and prohibition-judicial review orders sought to challenge a decision to prosecute and to stop criminal proceedings-provision of exculpatory evidence at the judicial review proceedings-effect of producing evidence that could be used to mount a defence in criminal proceedings, in an application to review a decision by the Director of Public Prosecutions to prosecute-whether under those circumstances the Application would not be one that was amenable to judicial review.
Judicial Review-certiorari and prohibition-judicial review orders sought to challenge a decision to prosecute and to stop criminal proceedings-claim that the decision to prosecute was tainted with irrationality, unreasonableness and procedural impropriety-whether such a decision to prosecute would be quashed and further criminal proceedings stopped.

Brief Facts:
On May 10, 2018, the Milmet Dam also known as the Solai Dam, located at Nakuru County collapsed and there was flooding which claimed 47 lives. The tragedy was not perceived as a natural disaster and there was agitation for action to be taken against those who were responsible. On July 4, the Director of Public Prosecutions issued a press statement stating that investigations and prosecutions would be undertaken. Consequently, the Applicants were among those arraigned in Court in Naivasha Chief Magistrates Court in CMCR 977 of 2018 Republic v Perry Mansukh Kasangara & others.
Specifically, the Applicants were charged for wilful neglect to perform duties which they were bound to perform under the Environmental Management and Co-ordination Act, the Water Act 2016, and the National Government Administration Officers Act, 2013. They were also charged with manslaughter. Generally, they sought judicial review orders of certiorari and prohibition to quash the decision to charge them and to stop the Respondents from prosecuting the charges. The Applicants asserted that their employment did not entail any duties which concerned the inspection and licensing of the Solai Dam. They said that they could only be guilty of manslaughter if they neglected to perform their duties. They added that the institution of criminal proceedings was not on the basis of a reasonable cause and it was an abuse of legal process.
The Respondents said that the Application was an attempt by the Applicants to show through evidence that they were not culpable. They added that it should be dismissed because the Applicants would have a fair opportunity to defend themselves at the criminal trial.

Issues:

  1. Whether the judicial review application brought to challenge a decision to prosecute was actually a form of a defence which was suitable for determination in a criminal court and was thus not amenable to judicial review.
  2. Whether the Director of Public Prosecutions’ decision to institute criminal proceedings against the Applicants was tainted with irrationality, unreasonableness and procedural impropriety necessitating the intervention of the Court.
  3. Under what circumstances would the Court, in judicial review proceedings, interfere with an apparently absolute discretion conferred upon the Executive? Read More...

Held:

  1. The role of the Court in an application that challenged a decision to institute criminal proceedings, was to ensure that an applicant was not taken to court to face criminal charges without the existence of substantial evidence to sustain an indictment. The DPP had the discretion to decide on who, when and how to prosecute within the bounds of reasonableness. Where the DPP did not act reasonably it would mean that he acted ultra vires and the Court could intervene. The Court had inherent power to secure fair treatment for all persons before it and to prevent abuse of legal process.
  2. The Court would not consider the merits or otherwise of the criminal processes as that was an arena reserved for the criminal trial court. Additionally the Court ought not to usurp the constitutional or statutory mandate of the Respondent.
  3. Section 128 of the Penal Code concerned neglect of official duty by a public servant which that public servant was bound either by common law or written law to perform. Under the provision, the public duty whose performance was omitted need not be statutory and facts constituting common law elements of evidence were adequate to justify the institution of charges.
  4. The evidence tendered and the circumstances of the entire case would be considered in determining whether the Application was meritorious. It would be improper to dismiss a judicial review application because there was a heavy dose of evidence, if considering the overall picture, there was a meritorious basis to avail the evidence to show that the actions of the DPP were improper.
  5. Even in the exercise of what was apparently prima facie absolute discretion conferred on the Executive, the Court could interfere and it could only intervene in the following situations:-
    1. Where there was an abuse of discretion;
    2. Where the decision-maker exercised discretion for an improper purpose;
    3. Where the decision-maker was in breach of the duty to act  fairly;
    4. Where the decision-maker failed to exercise statutory discretion reasonably;
    5. Where the decision-maker acted in a manner that frustrated the purpose of the Act donating the power;
    6. Where the decision-maker fettered the discretion given;
    7. Where the decision-maker failed to exercise discretion; and,
    8. Where the decision-maker was irrational and unreasonable.
  6. Under the Fourth Schedule Part 2 section 10 of the Constitution, the County Government had responsibility relating to implementation of specific National Government policies on natural resources and environmental conservation including soil and water conservation. Further under article 189(1)(b) Government at either level was obligated to assist, support and consult and, as appropriate, implement the legislation of the other level of Government. County officers had a responsibility to be alive to the content of legislation and to assist, support and implement the legislation as was appropriate. Therefore, the officers of the County Government had a functional and co-ordinating role in environmental matters.
  7. Considering the provisions of the Water Act and the Environmental Management and Co-ordination Act, it was clear that the issuance of various types of permits was the responsibility of the Water Resources Agency and NEMA. While that was true, to the extent that the Water Officer and the Sub-county administrator had co-ordinating roles in ensuring that the requisite laws were implemented, it could not be said that there could be no suspicion of neglect on the part of county officers.
  8. The circumstances were that the Chief Water Officer in a sub-County and the Administrator of the sub-County, both of whom represented the sub-County in matters of water and the implementation of legislation and policy, stated that they had no responsibility in respect of a dam within their jurisdiction. They were aware of the existence of the dam before the flooding and its disastrous consequences occurred. In those circumstances public interest required investigations and having the persons responsible or complicit for the incident brought to account.
  9. The collapse of the dam had grave consequences and it was in public interest and in the interest of all the parties to the criminal prosecution for the criminal proceedings to continue and to be determined expeditiously.

Application dismissed.

CIVIL PRACTICE AND PROCEDURE Circumstances in which the Supreme Court would allow for consolidation of proceedings filed at the Supreme Court.

Independent Electoral & Boundaries Commission & another v Albeity Hassan Abdalla & 2 others
Petition (Application) No 20 of 2018
Supreme Court at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SCJJ
October 5, 2018
Reported by Beryl A Ikamari

Download the Decision

Civil Practice & Procedure-consolidation of proceedings-consolidation of proceedings before the Supreme Court-where two different petitions were filed at the Supreme Court in relation to the same cause of action to challenge a Court of Appeal judgment-whether the Supreme Court would exercise its discretion and allow the two petitions to be consolidated-Supreme Court Rules 2012, rule 14.
Evidence Law-admission of additional evidence-admission of additional evidence at the Supreme Court-considerations of the Supreme Court in admitting additional evidence-whether the Supreme Court would allow the filing of a Supplementary Record of Appeal filed for purposes of tendering additional evidence-Supreme Court Rules 2012, rule 18(3)(c).

Brief facts:
The Court of Appeal delivered a judgment on July 12, 2018, in which it nullified the election of the 2nd Respondent as the Senator for Lamu County. The Applicants were aggrieved by that decision and they filed an appeal at the Supreme Court in which they sought the setting aside of the orders of the Court of Appeal. The 2nd Respondent also filed an appeal at the Supreme Court seeking the setting aside of those orders.
The Applicants filled a Notice of Motion wherein they sought the consolidation of the two appeals, namely Petition No 20 of 2018 and Petition No 18 of 2018. They also sought orders for them to be exempted from including in their Record of Appeal documents that were included in Petition No 18 of 2018 except for such other documents as the Court could direct and they also sought leave to file a Supplementary Record of Appeal to include Form 38A for Kiangwe Primary School polling station as evidence.

Issues:

  1. When would the Supreme Court order for proceedings pending before it to be consolidated and for a single Record of Appeal to be used?
  2. Whether the Supreme Court would allow an application for admission of additional evidence. Read More..

Held:

  1. The two petitions should be consolidated. The petitions would be consolidated in exercise of the Supreme Court's discretion provided for in rule 14 of the Supreme Court Rules, 2012.
  2. Since the two petitions streamed from the same cause of action and the same judgment of the Court of Appeal, the use of a single Record of Appeal was pragmatic. In that way duplicity would be avoided and the hearing of the consolidated matters would be expedited.
  3. The Supreme Court set down principles for consideration in determining an application for admission of additional evidence. The Applicant did not meet the threshold for such admission.

Application partly allowed.
Orders:-

  1. Petition No. 18 of 2018 and Petition No. 20 of 2018 were consolidated with Petition No. 18 of 2018 being the lead file.
  2. The Applicants, Independent Electoral and Boundaries Commission and Mohamed Adan Ali, were exempted from including in their Record of Appeal those documents already included in the Record of Appeal filed in Petition No. 18 of 2018.
  3. The Application for leave to file and serve a Supplementary Record of Appeal including the Form 38A for Kiangwe Primary school polling station was disallowed.
  4. Costs of the Application shall abide the Appeal.
STATUTES Demands for fees for liquor licence renewals in Embu County can only be made after the establishment of the Directorate of Alcoholic Drinks Control.

Republic v County Government of Embu alias Embu County Government
Misc Application No 216 of 2014 (JR)
High Court at Embu
F Muchemi, J
October 9, 2018
Reported by Beryl A Ikamari

Download the Decision

Statutes-interpretation of statutory provisions-interpretation of section 4 of the Embu County Alcoholic Drinks Act, 2014-legal requirements relating to the establishment of a Directorate of Alcoholic Drinks Control and appointment of officers to the Directorate-proof of establishment and ratification by the County Assembly of the appointments of members of the Directorate-effect of failure to prove that the County Assembly ratified appointments made to the membership of the Directorate-whether the Directorate of Alcoholic Drinks Control for Embu County had been established as required by law-Embu County Alcoholic Drinks Act, 2014, section 4.
Devolution Law-role of the County Government-mandate to impose taxes, fees and charges for services-regulation of trade licence fees-where county legislation provided for the establishment of the Directorate of Alcoholic Drinks Control whose existence was necessary before demands for fees for licence renewals by liquor dealers in the County could be made-effect of allegations that licence fees were demanded before the establishment of the Directorate.

Brief facts:
The Applicant sought orders of mandamus to compel the Respondent to establish a Directorate of Alcoholic Drinks Control. The Applicant explained that without the Directorate, the Respondent lacked capacity to charge fees concerning licences for alcohol dealers. The Applicant also sought orders of certiorari to quash notices issued by the Embu County Executive for Trade and Tourism directing liquor dealers/bar owners to renew their licences and pay fees for licences. The Applicant also stated that the enactment of the Embu County Alcoholic Drinks Control Act did not comply with the law as the relevant stakeholders were not consulted.
The Respondent stated that there was public participation in the enactment of the Embu County Alcoholics Drinks Act. The Respondent added that the Directorate of Alcoholic Drinks Control had been set up and appointments to the Directorate had been made and the County Assembly ratified the appointments. The County Government, the Respondent, also stated that the proceedings had been overtaken by events as the impugned notices which called for renewal of licences had a deadline of October 2014.

Issues:

  1. Whether the Directorate of Alcoholic Drinks Control for Embu County had been established as required by law.
  2. Whether notices for the renewal of licences, which had a deadline of October 2014, were issued lawfully.
  3. Whether it was appropriate for the orders of mandamus and certiorari to be issued. Read More..

Held:

  1. Orders of certiorari would remedy a situation where there was a breach of some principle of natural justice, for example, where evidence was received by one party in the absence of the other. On the other hand, mandamus was meant to compel the performance of a public duty and not to require that duty to be performed in a certain manner.
  2. Section 4 of the Embu County Alcoholic Drinks Act, 2014 provided for establishment of a Directorate of Alcoholic Drinks Control. It had various functions which included public education on alcoholic drinks control and facilitation of citizen participation in matters related to alcoholic drinks control in accordance with the applicable legal framework for citizen participation.
  3. The Applicant was an association of County liquor dealers established in March 2014. As such, it was a stakeholder in all matters relating to the regulation of alcoholic drinks.
  4. The Respondent produced a letter dated September 17, 2014, relating to appointments of 5 officers to the Interim Directorate. The Respondent also produced other letters showing that there was stakeholder participation and feedback to demonstrate that the procedure relating to the Directorate and appointments to it was followed. However, the Respondent did not produce evidence to show that the County Assembly ratified the appointment of the five members of the Directorate as required by law. The information presented by the Respondent was not sufficient to prove that the County had formed a Directorate of Alcoholic Drinks Control at the time the notices in question were issued.
  5. The notices in question were not issued lawfully as there was no legally established Directorate. However, the notices were to apply to a period that had passed and they had expired. They were overtaken by events. The issuance of orders of certiorari, under the circumstances, would be of no effect and the Court would not act in vain. Therefore, orders of certiorari should not be issued.
  6. The Respondent gave evidence on the state of affairs of its operations since the judicial review application was filed and under the circumstances, the grant of the orders of mandamus would not serve the interests of justice.
  7. The proceedings would not have been filed in court if the Respondent had complied with the law. In filing the proceedings, the Applicants had incurred costs. It was noteworthy that the matter entailed public interest litigation which was intended to benefit the Applicant, other stakeholders and the general public. It was appropriate for the Respondent to meet the costs of the proceedings.

Orders:-

  1. The quashing orders of certiorari were not granted as the impugned notices had already expired.
  2. Orders of mandamus were not granted as that would not serve the interests of justice.
  3. The Respondent had to meet the costs of the proceedings.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org